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Tag: Roger Vinson

That’s the title of my latest column at National Review Online. An excerpt:

Mitt Romney isn’t the only Republican presidential hopeful with an Obamacare problem: Indiana governor Mitch Daniels, were he to become the GOP’s nominee, could also undermine the repeal campaign that has united the party’s base and independent voters.

Among his liabilities:

Daniels’s decision to accept Obamacare funds and move forward with implementation is further undermining the repeal effort. Yesterday, federal judge Roger Vinson reversed his initial order forbidding the Obama administration to implement the law. He did so in part because plaintiff states such as Indiana are implementing it, which he said “undercut” their own argument that he should block it.

But all is not lost for Daniels.

Daniels can spare himself and the repeal movement such setbacks by following the lead of Florida governor Rick Scott (R.) and Alaska governor Sean Parnell (R.) and flatly refusing to implement any aspect of Obamacare. Daniels could even organize another letter in which his fellow governors all make the same announcement.

The Associated Press reports that Alaska Gov. Sean Parnell (R) told the Juneau Chamber of Commerce that he will not be implementing ObamaCare:

“The state of Alaska will not pursue unlawful activity to implement a federal health care regime that has been declared unconstitutional by a federal court,” Parnell told the Juneau Chamber of Commerce, to applause, Thursday.

The AP included a couple of interesting comments from ObamaCare supporters Timothy Jost, a law professor at Washington & Lee University, and Ron Pollack, executive director of Families USA.

Jost described Judge Roger Vinson (to whom Parnell referred) as “one renegade judge,” when in fact two federaljudges have struck down ObamaCare’s individual mandate as unconstitutional. (Since only two federal judges have upheld ObamaCare, who’s to say which pair are the renegades?)

Jost also called Alaska an “outlier” among states, while the AP reported, “Neither [Pollock] nor Jost knew of any other state taking action similar to Parnell.” Jost and Pollack should know that Florida Gov. Rick Scott (R) had already refused to implement ObamaCare. (Here he is telling an approving audience of Cato supporters.) Ironically, the AP story overlooking Scott’s leadership appeared on the Miami Herald web site, which had previously reported that Scott even returned to the federal government the ObamaCare money that his predecessor Charlie Crist accepted but hadn’t spent. Scott may not be enough company to keep Parnell from being an outlier. But Jost should also know that dozens of governors who are implementing ObamaCare are also hoping the Supreme Court will strike it down as unconstitutional. Parnell and Scott are outliers for their courage, not because they oppose ObamaCare.

The news about Parnell came as the U.S. Department of Justice filed a motion asking Judge Vinson to clarify that his declaratory judgment “does not relieve the parties of their rights and obligations under [ObamaCare] while the declaratory judgment is the subject of appellate review.” Ilya Shapiro and I clarified that issue in our oped, “President Should Heed Court and Stop Implementing ObamaCare.”

Uncertainty over the practical effect of Judge Roger Vinson’s decision on Monday that ObamaCare is unconstitutional in its entirety continues to swirl all across the country. The day after the decision came down, as I noted here on Wednesday, Wisconsin Attorney General J.B. Van Hollen, one of the parties to the suit, issued a statement saying: “This means that, for Wisconsin, the federal health care law is dead,” and his state “was relieved of any obligations or duties” to carry out the statute. And just today Alaska’s Governor Sean Parnell asked his attorney general to advise him on whether implementing and enforcing the federal healthcare overhaul would put Parnell in violation of his oath of office. He told reporters that he took an oath to support and defend the constitutions of the United States and Alaska, adding that he has a duty to uphold the law. Other governors and state AGs, to say nothing of insurance companies, employers, and ordinary citizens, are all in the same boat, and will be until the Supreme Court finally decides the matter, which may be a year or more in the offing.

Here’s the legal issue in a nutshell. Two district courts have upheld the statute. Prior to Monday’s ruling, a district court in Virginia found a core element in ObamaCare, the individual mandate, to be unconstitutional. And on Monday Judge Vinson, in the Northern District of Florida, issued a “declaratory judgment,” declaring ObamaCare unconstitutional in its entirety. In his opinion he held that the judgment was “the practical equivalent of specific relief such as an injunction,” and he added that “it must be presumed that federal officers will adhere to the law as declared by the court.” The Obama administration has thus far shown no inclination to “adhere to the law as declared by the court.” Nor has the administration thus far sought to stay any practical effects of the court’s ruling.

Just what those effects may be is what is unclear, leading to the confusion. It would seem, at a minimum, that the parties to the suit are bound by the judgment. If so, at the least, the government has no authority to implement the statute within the jurisdiction of the Northern District of Florida. But beyond that jurisdiction, does the government have authority to do so with respect to those parties? Suppose one of the winning plaintiffs sought to enjoin the government in a jurisdiction that had upheld the statute. On which of the conflicting decisions would the court decide to grant or deny the motion? Suppose the government sought a writ of mandamus from a court in such a jurisdiction, ordering one of the plaintiffs to comply with the statute. Again, on which of the conflicting decisions would the court decide to grant or deny the motion?

The administration could seek to stay the effects of the two decisions that went against it, of course, which isn’t to say a court would necessarily issue such a stay. After all, if it turns out that those rulings are correct, a huge amount of trouble and expense, especially in financially strapped states, will have been for nothing – and vast insurance and medical markets will have been uprooted.

Not surprisingly, therefore, there is action in the political branches to try more quickly to resolve this matter. Yesterday, for example, Virginia Attorney General Ken Cuccinelli asked the Supreme Court to bypass the normal appeals process and review the decision from that state directly. The Obama Justice Department said it will oppose the motion. Then just today Senator Kay Bailey Hutchison (R-Texas) and 15 of her Republican colleagues announced that they’re working “to place a moratorium on any further implementation of the statute until there has been final judicial resolution in the pending lawsuits challenging the law.” Of particular note: “The bill delays provisions and new regulations of the Obama health care law not in effect on the date of enactment until final judicial resolution of the lawsuits. The bill does not suspend features of the law already in effect on the date of enactment.” And finally, on the other side of the aisle, Senator Bill Nelson (D-Florida) has just introduced a “Sense of the Congress” resolution urging the Supreme Court to put the matter on a fast track to resolution. Stay tuned, there’s much at stake.

It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place…

The individual mandate is outside Congress’ Commerce Clause power, and it cannot be otherwise authorized by an assertion of power under the Necessary and Proper Clause. It is not Constitutional.

[O]n the unique facts of this particular case, the record seems to strongly indicate that Congress would not have passed the Act in its present form if it had not included the individual mandate. This is because the individual mandate was indisputably essential to what Congress was ultimately seeking to accomplish. It was, in fact, the keystone or lynchpin of the entire health reform effort…

Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void.

What’s more, it appears that the Obama administration must seek intervention from a higher court if it wants to keep implementing ObamaCare. Even though Vinson declined to issue an injunction forbidding the administration to implement the law, he did so because of:

a long-standing presumption “that officials of the Executive Branch will adhere to the law as declared by the court. As a result, the declaratory judgment is the functional equivalent of an injunction”…”declaratory judgment is, in a context such as this where federal officers are defendants, the practical equivalent of specific relief such as an injunction”…Thus, the award of declaratory relief is adequate and separate injunctive relief is not necessary.

In other words, absent intervention from a higher court, HHS must now sit on its hands.

It’s now official: 28 states are challenging the constitutionality of Obamacare in the courts. For those of you keeping score, the following six joined the Florida-led lawsuit: Ohio, Wisconsin, Iowa, Kansas, Wyoming and Maine. Then of course Virginia is pursuing its own suit, and now Oklahoma is about to file its own separate lawsuit based on its voters’ approval in November of a Health Care Freedom Act similar to Virginia’s.

Sadly – if I’m allowed to stop being hard-headed and just shake my head in an “o tempore o mores” sort of way – the government opposed Florida’s motion to add the six states to its lawsuit. There was no basis for this opposition: the newcomers are for these purposes similarly situated to the existing plaintiff states and raise no new legal arguments.

The district judge, Roger Vinson – who is expected to release an opinion shortly striking down at least parts of Obamacare – saw through the government’s cynical ploy. He granted the simple joinder motion the day after it was filed and without waiting for a formal reply from the Department of Justice, saying “…I can imagine no prejudice that could inure to the defendants in granting the plaintiffs’ motion, as the second amended complaint changes nothing in the case except for the caption and style, and will not delay its resolution. Indeed, because of this, I will relieve the defendants of the obligation to file an answer to the new complaint and will regard their previously-filed answer as an answer to the new complaint as well.”

This train is picking up steam, folks. But at least one political question remains: Why hasn’t New Jersey Governor Chris Christie, darling of the Tea Parties and all who like plain-speaking politicians, climbed aboard?